(After stating the facts as above set forth). A bill which seeks a rehearing in chancery, after a judgment in a court of law, must show a sufficient defence at law, of which the complainant could have availed himself, but was prevented from, doing so by some surprise, accident, mistake, or fraud, or by some act of the opposite party, unmixed with any fault or negligence on the part of the party complaining. M’Collum v. Prewett, 37 Ala. 573; Garrett et al. v. Lynch, Adm'r, 44 Ala. 683. In this case, there is no allegation or pretence of fraud, or act of the opposite party, which prevented the defence at law; and there is no allegation of any necessity for a discovery to establish the defence at law. The complainant was duly served with process, in each suit on the note. He admits that he had notice of a sufficient defence at the time of the pendency of the first suit; and he shows that it was his own fault and negligence that he did not plead it. It seems that he gave no attention to the matter whatever, and permitted the judgment to be taken by default. The bill is fatally defective in this particular. It wholly fails to show any sufficient diligence in making any defence at law, or any sufficient excuse for this failure to make it. The bill was, therefore, devoid of equity, and should have been dismissed on the motion in the court below. 1 Brick. Digest, p. 666, § 376, and cases there cited.
2. But is the defence insisted on sufficient to bar a recovery at law ? If Bibb was bound to make good the amount of Raley’s embezzlement, as the bill alleges, then he stood in the attitude of security for Raley, and Raley would be bound to refund to him the amount he would be forced to pay for the embezzlement. The giving of the note to Bibb, by Raley, showed that he accepted the payment that Bibb made for him. This would establish the relation of debtor and creditor between them. Ross v. Pearson, 21 Ala. 473. The consideration of the note was, then, a debt which Raley owed to Bibb, for the amount of the embezzlement. This was a legal consideration, and Raley could not be permitted to repudiate the payment of the note. If the note bound Raley, as it certainly did, it also bound his surety to the same extent. Evans et al. v. Keeland, 9 Ala. 42. The agreement to give the note with surety, for the amount of the embezzlement, is not the contract on which the suit in this case is founded. That- agreement is such' an one as the law might not have enforced; but the contract of the note, to which that agreement led, is quite a different thing. This latter contract is not affected with the vice of that agreement. It was proper and right in itself, and it is founded on a legal consideration, as is shown in the bill; that is, the obligation that Raley was under to Bibb, to make good the amount of the embezzlement that Bibb was liable to pay for him. *4752 Kent, 468; Howe v. Synge, 15 East, 440. The general rule is, that any act of the plaintiff, from which the defendant derives a benefit, is a sufficient consideration to support a promise or contract. 1 Brick. Dig. p. 382, § 114, and cases there cited. Bibb’s act in paying the amount of the embezzlement for Raley was a benefit to Raley. The consideration of Raley’s note is this benefit, and not the agreement to refrain from the prosecution of said Raley for embezzlement, as is argued in appellee’s brief. There is, then, no sufficient defence shown in the bill to the suit at law. The motion to dismiss for want of equity should have prevailed in the court below. In refusing this motion, the court erred.
Note by Reporter. — The following opinion was delivered on a subsequent day of the term, in response to an application by the appellee’s counsel for a rehearing: —The judgment and order of the court below is reversed, and this court, proceeding to render the decree that should have been rendered in the court below, doth order, adjudge, and decree that the injunction heretofore allowed and issued in this case be dissolved ; that this bill be dismissed out of this court for want of equity, and that appellee, said Henry W. Hitchcock, pay the costs of this suit in this court, and in the court below.
PETERS, C. J.— The appellee, Hitchcock, moves this court “ to vacate so much of the judgment rendered ” in this cause on the 23d day of June, 1873, “ as dismisses the original bill ” in this suit; upon the grounds that said judgment of dismissal was unauthorized by law, and that this court had no jurisdiction to dismiss said original bill. There are other grounds also stated for the motion, but, as they involve the same questions in different aspects, they need not be particularly noticed.
In the court below, there was a motion to dissolve the injunction granted on the filing of the original bill, on the denial of the answer, and also a motion to dismiss the bill for want of equity. These motions were heard together, and were each overruled by the learned chancellor. This decree, announcing this judgment of the court below, omitting the title of the cause, and the term of the court, is in these words: “ This cause was submitted in term time, on motion of defendant: 1st, motion to dissolve the injunction on the denials of the answer ; 2d, motion to dismiss the bill for want of equity; 3d, on demurrer of defendant Bibb to the bill. And on consideration of said several motions, after argument of counsel for the said Bibb, it is considered by the court that the said motions (be), and they are severally overruled, and that the said demurrer to said bill is also overruled, and that the said Bibb be *476taxed with the costs of said several motions. May 28, 1872.” The record shows that this is the judgment from which this appeal is taken. The instrument for the security for costs of the appeal shows that it is for an appeal “ from decree refusing to dissolve injunction, &c., in the above cause.” It also appears that the notice of appeal is for an appeal from the decree over-ruling the motion in said cause “ to dissolve the injunction on the denials of the answer.” And the certificate of the register, that an apjjeal was taken, recites, that an appeal was taken “from the decree in said cause, to the Supreme Court,” without confining the appeal to either one of the motions mentioned in the decree. When the record was brought into this court, the following errors were assigned upon it: “ 1st. The court below erred in overruling the motion to dissolve the injunction on the denials of the answer; 2d. The court below erred in overruling the motion to dismiss the bill for want of equity; 3d. The court below erred in overruling the demurrer to the bill; 4th. The court below erred as shown by the record.” To this assignment of errors, the appellee, without objection, replied, “ There is no error in the record.” Upon this assignment of errors, the learned counsel for the parties most industriously discussed the questions in law arising on each of these assignments of error.
This being the state of the record, and the action of the parties, as represented by their counsel, this court could not presume that the appeal was not intended to extend beyond the refusal of the motion to dissolve the injunction. The certificate of the register, which gives this court jurisdiction of the case, shows that the, appeal was taken from the whole decree rendered by the chancellor on the 28th day of May, 1872, and not from any particular portion of it, and the parties so treat it in this court. This they might do. By the Act of February 13, 1871, “ An appeal lies to the Supreme Court, on all interlocutory orders, in term time or vacation, sustaining or dissolving injunctions.” Acts of Ala. 1870, 1871, p. 20, No. 26, § 1. And by the Code, “ Air appeal to the Supreme Court may be taken, before the final determination of the cause, from any judgment or decree overruling a motion to dismiss a bill for want of equity;”....“ but such appeal shall be taken only after the consent of the opposite party, or his attorney, is obtained to its being taken ; and on the trial of such appeal, there shall not be a reversal, if the Supreme Court discovers that the defect or error alleged or insisted on can be removed or remedied by amendment under existing laws.” Rev. Code, § 3486. On such a record as this presents of the facts of this appeal, if the appellee did not consent to the appeal from the refusal to dismiss the bill for want of equity, he should have *477moved in tbis court to strike out all the assignments of error on that order of refusal. By failing to do tbis, and joining in the errors thus assigned, he elected to treat the appeal as one from this judgment of refusal, as well as from the refusal to dissolve the injunction. He cannot be permitted now to withdraw or deny his consent thus given or implied. It is now too late to evade the effects of the issue thus presented, in this court.
The original bill is without equity, and its statement of facts shows that there are no reasonable grounds for amendment. When this is the case, this court will reverse the decree of the court below from which the appeal is taken, and on which errors are assigned, and render such decree in this court as should have been rendered in the court below. Rev. Code, § 3502. The jurisdiction to do this can hardly be reasonably doubted. Rev. Code. § 3485. The appellee’s motion is, therefore, denied with costs.